Chicago Modifies Rules for Paid Leave and Paid Sick and Safe Leave

The Chicago Department of Business Affairs and Consumer Protection has amended the rules for the city’s Paid Leave and Paid Sick and Safe Leave ordinance. The changes take effect June 1.

Background

The Paid Leave and Paid Sick Leave ordinance requires all Chicago employers to provide paid leave and paid sick leave to employees. Employees are eligible for leave under the ordinance if they work at least 80 hours in Chicago within any 120-day period.

Employees begin to accrue paid leave and paid sick leave on the first calendar day after they begin their employment. For every 35 hours worked, employees accrue one hour of paid leave and one hour of paid sick leave. Employers may cap accrual at 40 hours of each type of leave per year.

Rule Revisions

The revisions make changes and additions to the existing rules. Notable changes are discussed here.

Joint Employers

A new rule for joint employers includes that:

• Joint employers may be separate and distinct entities with separate owners, managers, and facilities;
• If facts establish that an employee is jointly employed by two or more employers, all joint employers are responsible, both individually and jointly, for compliance with the ordinance;
• Employees jointly employed by more than one employer must be counted by each employer, regardless of whether their names appear on the employer’s payroll; and
• Joint employment can occur in a variety of situations, including, but not limited to, when an employer uses a temporary staffing agency, lead agency, professional employer organization, or other entity serving the same or similar functions.

Complaints, Subpoenas and Hearings

The revised rules delete the provisions allowing aggrieved employees to file a complaint with the department alleging employer violations of the ordinance and spelling out procedures associated with the complaint process.

The changes also deleted a portion of the rules that authorized the department’s commissioner to subpoena employers for information regarding the employer’s compliance. This section also provided rules allowing employers to object to the subpoena. All of these provisions were removed.

Employers should note, however, that under the ordinance, employer violations are still subject to fines, damages and private lawsuits by employees.

Accrual During Overtime

The revisions add a rule stating that nonexempt employees under the federal Fair Labor Standards Act accrue leave during all hours worked, including overtime.

Closure of a Child’s Place of Care

The rules allow employees to use paid sick leave for the unscheduled closure of their child’s place of care. The revised regulations clarify that “place of care” includes providers outside of institutional settings and locations and can include paid babysitters, family and friends who supervise children when the employee is working. The revisions give examples of an at-home babysitter or an after-school program being canceled as instances when the use of paid sick leave is permitted.

Alternate Policies

The changes added a rule that permits employers to establish an alternative policy that allows employees to accrue up to 80 hours of paid time off, as long as the policy meets or exceeds all requirements of the ordinance. The new rule provides the example of a policy that grants new employees 120 hours of PTO that can be used for any reason upon commencement of employment.

Requiring Employees to Appear at Worksite

Another new provision prohibits employers from requiring employees to appear in person at a worksite or administrative offices or to deliver any document to the employer before using paid sick leave or after usage to return to work.

Certification

The ordinance allows employers to require certification when employees use paid sick leave for three or more consecutive days. The rule revisions clarify that a shift that spreads from one calendar day to the next is counted as one work day for this purpose.

Disciplining Abuse of Paid Sick Leave

A new rule allows employers to discipline (up to and including termination) employees who abuse paid sick leave or use the leave for unauthorized purposes. As examples of such abuse, the rule gives the following “patterns of use”:

• Taking unscheduled paid sick leave on or adjacent to weekends, regularly scheduled days off, holidays, vacation
  or pay day;
• Taking scheduled paid sick leave on days when other leave has been denied; and
• Taking paid sick leave on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.

Next Steps for Employers

Employers with employees in Chicago should familiarize themselves with the rule changes and make any necessary updates to policies and employee handbooks. In addition, they should ensure that front-line managers and supervisors, as well as HR representatives, are trained on the new and revised rules.